Citation Nr: 0028291
Decision Date: 10/26/00 Archive Date: 11/01/00
DOCKET NO. 96-46 813 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to waiver of recovery of an overpayment of
benefits.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
Robin M. Webb, Associate Counsel
INTRODUCTION
The veteran had active service from January 1974 to April
1975.
This appeal arises before the Board of Veterans' Appeals
(Board) from a decision of the St. Petersburg, Florida,
Department of Veterans Affairs (VA) Regional Office's (RO's)
Committee on Waivers and Compromises (Committee). An August
1994 decision on waiver by the Committee denied the veteran's
request for a waiver of his overpayment indebtedness in the
amount of $8,099.80.
REMAND
The veteran's appeal was first before the Board in April
1998. At that time, the Board determined that the veteran
had raised two issues with regard to overpayment. First, the
veteran questioned the basic validity of the indebtedness,
and second, the veteran contended that recovery of the debt
would be against equity and good conscience, due to claimed
financial hardship. As to the former, the Board noted that
before a claim for waiver of overpayment could be
adjudicated, the matter of whether the overpayment was
properly created must first be adjudicated. See Schaper v.
Derwinski, 1 Vet. App. 430 (1991). The Board also noted that
the RO had not adjudicated this aspect of the veteran's
appeal.
The Board remanded the veteran's claim to the RO, directing
that the RO provide the veteran with the opportunity to
submit a current Financial Status Report and any additional
documentation regarding his claim. The Board also directed
the RO to adjudicate whether the debt was properly created.
If the RO determined that the debt was properly created and,
therefore, valid, the RO was to refer the amount to the
Committee for consideration of the veteran's request for
waiver. The RO was also to provide the veteran with a
supplemental statement of the case, in which the RO informed
the veteran of the reasons and bases for both the
determination as to the validity of the indebtedness and the
waiver determination.
Current review of the veteran's claims file and the
development accomplished subsequent to the Board's April 1998
indicates that the RO failed to comply with the Board's
remand directives, as required by law. See Stegall v. West,
11 Vet. App. 268 (1998). Specifically, a May 1999
administrative note indicates that the veteran's debt was
properly created and that it did not require a statement of
the case or reinstatement of benefits by the Adjudication
division. In March 2000, the RO then provided the veteran
with a supplemental statement of the case as to its waiver
determination only. The veteran was not provided with any
notice, including applicable law and regulations, as to the
validity of the indebtedness.
The United States Court of Appeals for Veterans Claims
(Court) has stated that compliance with remand directives by
the RO is neither optional nor discretionary. Where the
remand orders of the Board are not complied with, the Board
errs as a matter of law when it fails to ensure compliance.
Id.
As such, given that the RO did not comply with the Board's
remand directive to adjudicate the validity of the
indebtedness and to provide the veteran with notice, i.e., a
supplemental statement of the case, as to this aspect of the
veteran's claim, further appellate review of the veteran's
claim will be deferred pending another REMAND for the
required actions:
1. The RO must adjudicate whether the
debt was properly created, based upon
consideration of all applicable law and
regulations. If the RO decides that the
$8,099.80 debt was properly created and
is, therefore, valid, the RO should
provide notice to the veteran, including
the relevant laws and regulations
regarding validity.
2. If the debt is found to be valid,
wholly or in part, the veteran should be
provided the opportunity to submit a
current Financial Status Report and
additional argument and/or supporting
documentation regarding his claim, and
the Committee should re-consider the
veteran's request for waiver under the
standard of equity and good conscience in
light of the veteran's current financial
status.
3. After the above development has been
accomplished, if the veteran's appeal
remains denied wholly or in part, he and
his representative should be provided
with a supplemental statement of the
case, which should include a full
discussion of actions taken and the
reasons and bases for such actions.
In taking this action, the Board implies no conclusion as to
any outcome warranted. No action is required of the veteran
until he is otherwise notified by the RO. The veteran has
the right to submit additional evidence and argument on the
matter or matters the Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1999) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Heather J. Harter
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).